In re the Marriage of Rickard ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1606
Filed June 30, 2021
IN RE THE MARRIAGE OF ANTHONY MICHAEL RICKARD
AND KELSEY LYNN RICKARD
Upon the Petition of
ANTHONY MICHAEL RICKARD,
Petitioner-Appellant,
And Concerning
KELSEY LYNN RICKARD,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Jones County, Chad Kepros, Judge.
Anthony Rickard appeals the physical care and visitation provisions of the
decree dissolving his marriage to Kelsey Rickard. AFFIRMED.
Mark D. Fisher and Alexander S. Momany of Howes Law Firm, P.C., Cedar
Rapids, for appellant.
Jenny L. Weiss of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque,
for appellee.
Considered by Doyle, P.J. and Mullins and May, JJ.
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MULLINS, Judge.
Anthony Rickard appeals the physical care and visitation provisions of the
decree dissolving his marriage to Kelsey Rickard. Anthony argues the district court
erred in failing to award him physical care of the parties’ children or, in the
alternative, that joint physical care should have been awarded. Anthony also
argues the district court erred in not awarding him more visitation time.
I. Background Facts and Proceedings
Anthony and Kelsey met and began a relationship in 2013. They married
in July 2015. The parties share two minor children, and Kelsey has one child from
a prior relationship. For most of the marriage, Kelsey was a stay-at-home parent
providing care for the children. During periods where Kelsey was employed, she
worked no more than part time. Anthony earned a certificate in welding early in
the marriage and has maintained consistent employment since that time. Prior to
the parties’ separation, Anthony’s work hours were from 3:00 p.m. to 1:30 a.m.
After separation, Anthony was able to modify his work hours from 5:00 a.m. to 1:30
p.m., or 3:00 p.m. if overtime was required.
Since the birth of the parties’ oldest child, Kelsey has voluntarily worked
with providers from Lutheran Services of Iowa. Kelsey’s provider testified she
worked to build skills in “communication, balancing multiple children, developing
and coping with sleep patterns and illnesses, and healthy eating.” Anthony’s work
schedule prevented him from being fully involved in services with Kelsey, but the
worker testified that he was periodically involved if he was not at work or sleeping.
The parties separated and began dissolution proceedings following a
physical altercation in May 2019. The parties provided conflicting testimony about
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the altercation, but the district court ultimately found Kelsey’s version of the event
“more credible.” Kelsey testified that “the parties were arguing and Anthony put
his hands around her neck. [Kelsey] ran to [her oldest child’s] room and that
Anthony followed and said he was tired and did not mean to choke her.” Kelsey
filed a petition for relief from domestic abuse. Following a hearing, the parties
consented to entry of a protective order but there was no finding of domestic abuse.
The protective order was not in effect at the time of the dissolution trial.
Prior to trial, the parties filed a partial stipulation1 that was approved by the
court and incorporated into the decree. The parties stipulated to joint legal custody
but were unable to agree on physical care.2 The parties also stipulated to some
holiday time, but were unable to agree on Easter, Memorial Day, Fourth of July,
and Thanksgiving holiday time. They were also unable to agree on a visitation
schedule.
The dissolution trial was held in December 2020. The district court awarded
physical care of the parties’ two children to Kelsey. The district court awarded
Anthony visitation with the children every other weekend, and Wednesday
evenings from 5:00 to 8:00 p.m. Each party was awarded four weeks of summer
visitation, to be taken in nonconsecutive, one-week increments. Anthony appeals.
1 The partial stipulation resolved spousal support, tax exemptions, health
insurance, division of assets and liabilities (except a disputed equalization
request), and attorney fees. Allocation of court costs was disputed.
2 Consequently, child support and uncovered medical expenses for the children
remained disputed, pending the physical care decision.
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II. Standard of Review
Dissolution proceedings are equitable and are reviewed de novo. In re
Marriage of Mann, 943 N.W.2d 15, 18 (Iowa 2020). “We give weight to the factual
determinations made by the district court; however, their findings are not binding
upon [us].” Id. (quoting In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015)).
We also give weight to the district court’s findings on witness credibility. In re
Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007).
III. Discussion
A. Physical Care Determination
Anthony appeals the physical care determination in two ways. First, he
argues that the district court should have granted him physical care of the children.
In the alternative, he argues the district court should have awarded the parties joint
physical care.3 “‘Physical care’ means the right and responsibility to maintain a
home for the minor child and provide for the routine care of the child.” Iowa Code
§ 598.1(7). “The parent awarded physical care maintains the primary residence
and has the right to determine the myriad of details associated with routine living,
including such things as what clothes the children wear, when they go to bed, with
whom they associate or date, etc.” Hansen, 733 N.W.2d at 694. While considering
the best interests of children, “the objective of a physical care determination is to
3 In his brief, Anthony stated that Iowa has a presumption in favor of joint physical
care, and cited Iowa Code section 598.41 (2019). Section 598.41 contains no
language indicating such a presumption. In fact, our supreme court specifically
found no presumption in favor of joint physical care exists. In re Marriage of
Hansen, 733 N.W.2d 683, 692 (Iowa 2007).
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place the children in the environment most likely to bring them to health, both
physically and mentally, and to social maturity.” Id. at 695.
Courts examine the factors listed in section 598.41(3) and In re Marriage of
Winter, 223 N.W.2d 165, 166–67 (Iowa 1974), when making physical care
determinations. Id. at 696. Courts must also consider stability and continuity of
caregiving. Id. A history of “successful caregiving by one spouse in the past is a
strong predictor that future care of the children will be of the same quality.
Conversely, however, long-term, successful, joint care is a significant factor in
considering the viability of joint physical care after divorce.” Id. at 697 (citations
omitted). In splitting care among parties, courts utilize the approximation principle,
which suggests “the caregiving of parents in the post-divorce world should be in
rough proportion to that which predated the dissolution,” as they consider the
particular facts and circumstances of each case. Id. Courts also consider the level
of conflict between the parties and their ability to agree on day-to-day issues that
arise in children’s lives. Id. at 698–99.
In finding that shared physical care was not in the best interests of the
children, the district court noted that Kelsey had historically been the primary
caregiver. It also stated that Anthony “has had significant involvement with the
children,” who “should have substantial time with him.” It also said that although
there was no finding of domestic abuse that resulted from Kelsey’s petition for a
protective order, her version of the event was more credible than Anthony’s, but
that no other claim of abuse had been made. The court also noted that the parties
did not appear to have a high level of conflict, but described the communication
hurdles the parties face. “[E]ach of them struggle sometimes in processing
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information and responding to it. Each party struggled at times to understand and
respond to basic questions during trial. Each was quick to blame the other when
communication between them has been less than perfect.” The court found the
communication issues weighed against an award joint physical care. The court
also discussed the disagreement between the parties regarding basic child-rearing
practices and Anthony’s insistence on the use of corporal punishment. The parties
also disagree about the level of supervision required for the children. The court
again found the factors weighed against shared physical care.
On our review of the record, it is clear that both parents love the children
and want to provide daily care. Kelsey has been the primary caregiver for the
children, but after the parties separated, Anthony made changes to his work
schedule to allow him to spend more time with the children. And, trial testimony
revealed that when he is parenting, Anthony is an attentive parent. We defer to
the district court’s credibility determination on the parties’ competing versions of
the event that led to the protective order, but note that no finding of domestic abuse
was made and the protective order was entered into voluntarily. See Hansen, 733
N.W.2d at 690. It is also clear that the parties struggle to maintain positive,
productive communication. Text messages between the parties confirm the issues
described by the district court. The parties’ different practices with disciplinary
techniques are problematic. The children may expect discipline in Kelsey’s home
to involve timeouts and discussion, and corporal punishment in Anthony’s home.
We need not decide what disciplinary method is the best for each child, but the
conflict between the two in this case and the lack of support about discipline
between the parties will be confusing, disruptive, and possibly harmful to the
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children. Based on our de novo review, giving deference to the district court’s
thorough credibility findings, we agree with the district court that joint physical care
is not in the best interests of the children. Id. at 700.
We must now determine which parent will provide the children “the
environment most likely to bring them to health, both physically and mentally, and
to social maturity.” Id. at 695. While both parents love the children, the record
reveals that Kelsey has provided most of the daily care for the children. The
children are approaching school age, and Anthony’s work schedule will not allow
him to be home when the children wake up, or provide care throughout the day
until the children are in school full-time. Anthony has relatives and friends who are
able to care for the children when he works, but Kelsey does not work outside the
home and is available to provide the same level of care she has been providing
throughout the children’s lives. Kelsey has also taken an active role to improve
her parenting skills by engaging with Lutheran Services of Iowa. Anthony has had
opportunities to interact with service providers in the past, but has failed to
meaningfully do so. Finally, although the record reveals that the level of conflict
between the parties is not overwhelming, Kelsey is more supportive of Anthony’s
relationship with the children than he is of hers. We agree with the district court
that the parties are quick to blame each other when issues arise, but Kelsey
acknowledges the positive role Anthony plays in the children’s lives. On our de
novo review of the record, we agree with the district court’s finding it is in the
children’s best interests to grant Kelsey physical care.
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B. Visitation
Anthony argues the district court should have granted him more visitation
with the children. In determining the amount of visitation that “is reasonable and
in the best interest of the child[ren],” courts shall “includ[e] liberal visitation rights
where appropriate, which will assure the child[ren] the opportunity for the maximum
continuing physical and emotional contact with both parents . . . , and which will
encourage parents to share the rights and responsibilities of raising the child[ren].”
Iowa Code § 598.41(1)(a). “Quality interaction with children can . . . occur within
the framework of traditional visitation and does not occur solely in situations
involving joint physical care.” Hansen, 733 N.W.2d at 695.
Anthony was awarded visitation every other weekend, beginning Friday at
5:00 p.m. until Monday when school begins or 9:00 a.m. if school is not in session.
Anthony was awarded midweek visitation every Wednesday from 5:00 p.m. to 8:00
p.m. He was awarded four weeks of summer visitation to be taken in
nonconsecutive, one-week increments. The district court reasoned the schedule
it provided would give each parent meaningful, regular contact with the children
and allow them to maintain a stable routine.
Our review of the record reveals that the district court’s schedule provides
Anthony less parenting time with the children than he had prior to entry of the
decree. However, the district court’s schedule is a reasoned approach to visitation
and provides for the special circumstances of Anthony’s work schedule. The
district court’s visitation schedule provides Anthony with liberal visitation time, and
ensures a routine schedule of regular contact with the children. We understand
the schedule is not ideal to Anthony, but it is in the best interest of the children.
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IV. Conclusion
Our de novo review of the record reveals that joint physical care is not in
the best interests of the parties’ children. We agree that the physical care award
to Kelsey will place the children in the best position for long-term growth and
development. We also agree that the district court’s visitation award provides
Anthony liberal time with the children and is in the best interests of the children.
We affirm the decree dissolving the parties’ marriage.
AFFIRMED.